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(c) The Respondent addressed the determination of the Constitutional Court in respect of the National Youth Councils and National Women's Councils in Constitutional Petition No. 7 of 2003; Rubaramira Ruranga vs. The Attorney General by enacting:i. National Youth Council (Amendment) Act, 2010. ii. National Women's Council (Amendment) Act, 2010. (d) The Respondent shall object to any and all amendments to the Petition, specifically:i. Amendments challenging provisions of the amended Statutes ? not existing at the filing of this Petition. ii. Amendments challenging the manner in which the 2011 Special Interest Group Elections were conducted which elections had NOT been conducted at the time of filing the petition. iii. Amendments purporting to originate new causes of actions following the filing of this Petition. (e) The respondent shall contend that the effect of the stipulated amendments resolved matters raised in the Petition in respect of the affected Special Interest Groups." 1. The respondent prayed that this petition be dismissed with costs. Constitutional Petition No. 40 of 2010 1. In addition to the Attorney General , the Electoral Commission and the National Union of Disabled Persons in Uganda are the other respondents in this petition. It is contended in the amended petition that the provisions of section 8(4) of the Parliamentary Elections Act, 2005(as amended), provisions of 31A(1) and (6) (read together with Schedule A of the Act) of the National Council for Disability Act, 2003 (as amended by the National Council for Disabilities (Amendment) Act, No.6 of 2013, provisions of Regulation 10 of the Parliamentary Elections (Special Interest Groups) Regulations, 2001 regarding the elections of Members of Parliament representing PWDs are unconstitutional in as far as they run contrary and against Articles 20(2); 21(1), (2) & (3); 24; 29(1) (e); 35(1) and (2); 38(1); 59(1); 61(1); 62 and 63(1),(3)& (4) of the Constitution. 1. The substance of this petition is set out in paragraph 5 (a) to (h) which we shall set out here below. "(a) Section 8(4) of the Parliamentary Elections Act provides for procedures of elections of Members of Parliament representing PWDs which are different from those of other special interest groups including women and youth elected there under and therefore discriminatory. (b) While members of Parliament representing women are under section 8(4) (a) of the Parliamentary Elections Act, read together with section 6(1) of the National Women's Council Act, Chapter 318 (as Amended by the National Women's Council (Amendment) Act, No. 10 of 2010 are elected by secret ballot by all women qualified and registered to vote under a voter's register maintained by the Electoral Commission. In contrast and in a discriminatory manner, members of Parliament representing PWDs in 2011 were elected under section 8(4) (e) of the Parliamentary Elections Act, read together with Regulation 10 of the Parliamentary Elections (Special Interest Groups) Regulations, 2001 by an unelected Electoral College of National Union of Disabled People (NUDIPU) and without a voter's register maintained by the Electoral Commission. (c) Additionally, unlike women and the youth who solicit for voters only in their designated geographical constituencies, contestants for the position of member of Parliament for persons who contested to represent PWDs during the 2011 elections were forced to traverse the whole country soliciting for voters since they were

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Kasozi & 3 Ors v Attorney General & 2 Ors

Judgment

Question Presented: Whether forcing PWDs to be members of NUDIPU-affiliated associations to vote (as per Regulation 10) violated their constitutional rights, including the freedom of association (Article 29(1)(e)), the right to participate in public affairs (Article 38(1)), the right to redress (Article 50(1)), and the right to vote (Article 59(1)); Whether Parliament unconstitutionally abdicated its mandate under Article 78(4) of the Constitution by delegating the power to create electoral procedures to a Minister instead of prescribing them directly through legislation; and whether the legal framework for PWD elections, particularly after the 2013 legislative amendments, was constitutional.

Alleged Acts: In 2010, the petitioners challenged the constitutionality of the legal framework governing the election of representatives for special interest groups, including Persons with Disabilities (PWDs), to the Parliament of Uganda. The petitions were not heard until late 2015. In the interim, the 2011 general elections were conducted under the challenged rules. The 2011 electoral process for PWD representatives utilized an electoral college system that relied on the National Union of Disabled Persons of Uganda (NUDIPU), a voluntary non-governmental organization. Regulation 10 of the applicable electoral regulations effectively required any PWD wishing to participate in the electoral college to be a member of an association affiliated with NUDIPU. This had the practical effect of disenfranchising any PWD who was not a member of a NUDIPU-affiliated group. While the litigation was pending, Parliament passed the National Council for Disability (Amendment) Act in 2013. This new legislation altered the electoral process by mandating the Electoral Commission to establish Electoral Committees for PWDs at all levels, from village to district. Under this reformed system, the district-level committees would converge nationally to elect the five parliamentary representatives for PWDs, thereby removing the dependency on NUDIPU.

Procedural history: The constitutional petitions were initially filed in 2010 but experienced significant delays. The 2011 general elections proceeded under the legal framework that the petitioners were challenging. During the pendency of the case, Parliament enacted the National Council for Disability (Amendment) Act 2013. The Constitutional Court finally delivered its judgment on the consolidated petitions on September 29, 2015. Following the decision, affected parties lodged an appeal with the Supreme Court of Uganda.

Summary: Kasozi & 3 Ors v Attorney General & 2 Ors is a landmark Ugandan decision on the intersection of disability rights, freedom of association, and electoral law. The Constitutional Court invalidated the 2011 electoral framework that disenfranchised PWDs by requiring them to be members of a specific NGO to vote in the PWD electoral college. While affirming that Parliament had unconstitutionally delegated its legislative duties, the Court found that the 2013 amendments to the National Council for Disability Act had corrected these constitutional defects. This case is significant in Africa for establishing a strong legal precedent against using mandatory associational requirements as a barrier to political participation for persons with disabilities and for reinforcing the principle that electoral rules for marginalized groups must be subject to rigorous legislative and constitutional review.

Conclusion: By a majority of four to one, the Constitutional Court granted the petitions. The Court found that Article 78(4) of the Constitution explicitly places the responsibility for prescribing electoral procedures for special interest groups on Parliament. By delegating this authority to a Minister, Parliament had improperly abdicated its constitutional duty. Consequently, any procedures created by the Minister under this delegated authority were deemed unconstitutional. The Court held that the 2011 electoral framework was unconstitutional. Specifically, Regulation 10, which mandated membership in NUDIPU-affiliated groups as a prerequisite for participation in the PWD electoral college, was a direct violation of several fundamental rights. It infringed upon the freedom of association (Article 29(1)(e)) by compelling PWDs to join an organization against their will. This barrier also disenfranchised non-members, violating their right to participate in public affairs (Article 38(1)) and their right to vote (Article 59(1)). The Court concluded that the National Council for Disability (Amendment) Act 2013 had effectively remedied the constitutional flaws of the previous system. By tasking the official Electoral Commission with forming inclusive electoral committees from the grassroots level up, the amendment removed the discriminatory NUDIPU membership requirement.

Legal Issue(s)

Freedom of association and assembly
Voters' Rights

Applicable Law(s): Constitution of Uganda, Parliamentary Elections Act, and the National Council for Disability Act.

Region: Africa

Country: Uganda

Language of Decision

English

Court: Constitutional Court

Election Type: Parliamentary

Date of decision: Sep 29, 2015

Geolocation

Latitude: 0.315833

Longitude: 32.579167

: Geolocation

Link: https://sheriahub.com/cases/ug/caselaw/kasozi-3-ors-v-attorney-general-2-ors-constitutional-petition-37-of-2010-2015-ugcc-2-29-september-2015.pdf

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Kasozi & 3 Ors v Attorney General & 2 Ors

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